Skip to main content

Full text of "The people vs. Peter W. Roff : opinion of Judge Birdseye relative to the powers and duties of the health officer of the Port of New York : Lott C. Clark, counsel for the people : E.W. Stoughton, counsel for the defendant"

See other formats


'// 



IN SUPREME COURT. 



THE PEOPLE, 



; 



PETER W. EOFF. 

OriNION OF JUDGE BIRDSEYE, 

RELATIVE TO THE POWERS AND DUTIES OF THE HEALTH OFFICER 
OF THE PORT OF NEW YORK. 



LOTT C. CLARK, 

Counsel for the People. 

E. W. STOUGHTON, 

Counsel for the Defendant. 



(♦> 



NEW YORK : 
WM. C. BRYANT & CO., PRINTERS, 41 NASSAU STREET, COR. LIBERTY, 

18 5 6, 



Supreme Court, 

KINGS COUNTY. 

Before Birdseye, J., at Chambers. 
August 19, 1856. 



The People, 

vs. 

Peter W. Roff. 



On the 16th of August, 1856, on the petition of Peter W". 
Roff, alleging that he was then illegally restrained of his liberty, 
and imprisoned in the common jail of Richmond county, a writ 
of habeas corpus to the keeper of the jail was allowed, return- 
able on the 18th. The writ was then returned, and the pri- 
soner brought up. The return showed that he was imprisoned, 
by virtue of a commitment, by Theodore Frean, one of the 
Justices of the Peace of Richmond county, dated on the 14th 
of August, of which commitment a copy was annexed to the 
writ and return. 

The commitment recites that Roff had been that day brought 
before the Justice charged, on the oath of John B. Giles, who 
made complaint, on oath, before said Justice, in the words and 
figures following, to wit : " That on or about the 7th day of 
August, 1856, the Supervisor and Jus ices of the Teace of the 
town of Castleton, in said county, were duly organized as a 
Board of Health, in and for said town, pursuant to statute in 
such case made and provided ; that on the 7th day of August, 
instant, the said Board duly met in said town and made certain 



4 

regulations to regulate, prohibit, and prevent communication 
and intercourse with a certain place in said town, in which 
there were persons who had been exposed to infectious and 
contagious disease, to wit, with a certain place commonly 
known as the Quarantine inclosure ; that among said regula- 
tions was one prohibiting all persons from passing from within 
the said Quarantine inclosure into any other part of said town / 
which said regulations were then and there duly published, 
pursuant to statute ; that afterward, to wit, on the 14th day of 
August, 1856, one Peter Koff did, at the town and in the 
county aforesaid, knowingly and wilfully violate the aforesaid 
regulations of said Board of Health, so published as aforesaid, 
by wilfully passing from within the said Quarantine inclosure 
into another part of said town, to wit, into the village of 
Tompkinsville ; and, after examination had, in due form of law, 
touching the said charge and accusation, the said Justice did 
adjudge and determine that the said offence had been commit- 
ted, and that there was probable cause to believe the said Peter 
Koff to be guilty thereof." 

The commitment, after further reciting that the said Peter 
Roff had not offered sufficient bail for his appearance to answer 
the said charge at the next court having criminal jurisdiction, 
commands the keeper of the jail to receive Eoff into custody 
in the jail, and detain him till discharged according to law. 

It appearing from this return that the party was detained 
upon a criminal accusation, notice was given, by order, to the 
District Attorney of Richmond county, as required by sec 47 
of 2 R. S., 569*, as amended by sec. 2 of chap. 240 of the Laws 
of 1837, and the hearing was adjourned till he should attend. 
The case was then elaborately argued on both sides. 

E. W". Stoughton for the prisoner. 

Lott C. Clark for the people. 

Birdseye, J.— The 38th and 39th sections of the habeas vrpus 
act (2 R. S., 567*,) make it my duty to " proceed to examine into 
the facts contained in the return, and into the cause of the con' 
finement of" the prisoner ; and " if no legal cause be chnwn 
for such imprisonment or restraint, or for the continuation 
thereof," to discharge him from custody. 

The prisoner has not denied any fact set forth in the "ailer's 



return, or alleged any fact to show that his imprisonment is 
unlawful, or that he is entitled to his discharge, as he might do 
by section 48 of the statute. But he contends that the com- 
mitment set forth in the jailer's return does not show that any 
crime had been committed, for the reason that the regulation 
of the Board of Health of Castleton set out therein is illegal 
and void, as contravening the policy of the law and the provi- 
sions of the statute in reference to the Quarantine establish- 
ment of the State. If this be so, there is " no legal cause 
shown for such imprisonment," and the prisoner is by law en- 
titled to his discharge. 

By sec. 2, of chap. 324, of the Laws of 1850, (p. 691,) it is 
enacted that " the Supervisor and Justices of the Peace, or the 
major part of them, of each town in this State, shall be a Board 
of Health for such town for each year, whenever, in the opi- 
nion of a majority of such Board, the public good requires it." 

The 3d section of the act prescribes the powers and duties 
of the Board of Health thus constituted. That these are very 
broad and comprehensive, will appear from an examination of 
the several subdivisions of this section — the third and fourth of 
which are these : 

" 3. To make regulations in their discretion, concerning the 
place and mode of quarantine ; the examination and purifica- 
tion of vessels, boat3, and other crafts not under quarantine ; 
the treatment of vessels, articles or persons thereof ; the regu- 
lation of intercourse with infected places ; the apprehension, 
separation, and treatment of emigrants and other persons who 
shall have been exposed to any infectious or contagious dis- 
ease ; the suppression and removal of nuisances ; and all such 
other regulations as they shall think necessary and proper for 
the preservation of the public health. 

4. To regulate and prohibit or prevent all communication or 
intercourse by and with all houses, tenements and place?, and 
the persons occupying the same, in which there shall be any 
person who shall have been exposed to any infectious or conta- 
gious disease." 

By section 4 of the same act, every person who shall wilfully 
violate any regulation so made and published by any such 
Board of Health, is declared guilty of a misdemeanor, and, on 



6 

conviction, is made subject to fine or imprisonment, or both, at 
the discretion of the Court, the fine not to exceed $1000, nor 
the imprisonment two years. 

If the Board of Health of Castleton had the power to make 
the regulation in question, then the prisoner is clearly enough 
charged with a crime, and is liable, on conviction, to punish- 
ment more severe than many persons suffer on conviction for 
felonies. 

The real question presented for my decision, therefore, is, 
whether the Board of Health of the town of Castleton had, 
under the statutes above cited, the poiver to make a regulation 
prohibiting all persons from passing from within the Quaran- 
tine inclosure into any other part of said town. 

It is deeply to be regretted that any such collision should 
have arisen between this Board of Health, thus temporarily 
organized, and the officers whom the State has appointed to 
take charge of its Quarantine establishment. It is the duty of 
those officers, and the State has given them sufficient powers to 
protect the health of the town of Castleton and the other towns 
in Richmond County, as well as of the cities bordering on the 
waters and rivers of the port of New York. On the due per- 
formance of these duties, and the efficient exercise of these 
powers, may depend the health and lives of vast numbers, not 
merely in all these towns and cities, but throughout the whole 
State, and it may be the whole country. "While the inhabitants 
of each town are justly entitled to exercise every lawful power 
for their own protection, and will be sustained by this Court to 
that extent, it is not less my dut}^ to see that they do not over- 
step that just limit, and, under the influence of perhaps a natu- 
ral alarm at the approach of infection and disease, seek their 
own safety at the expense of the health of the community at 
large. 

Such a conflict has never before disturbed our peace. If the 
rights and powers of the parties to the present dispute be 
clearly defined by the law, harmony will be restored, and, it is 
to be hoped, the wise and beneficent purposes of our health 
laws permanently secured. 

But it is not merely the powers of the Board of Health thus 
organized in Castleton, with reference to the Quarantine estab- 



lishment of the State, that renders this case one of importance. 
If this regulation is valid, every other town in the State may 
pass a like ordinance. It may prohibit the entrance into any 
part of the town, not merely of persons from the Quarantine 
establishment of the State, in charge of its Health Officer, and 
the other functionaries whom the State has appointed to assist 
him, but of persons from any other town in the State, even 
though the Board of Health of such town may not think that 
any disease exists within it, or may decide that every case of 
disease has been cured. What the town of Castleton here 
assumes to do towards that institution of the State, may be 
done towards the same town, by every other town in Richmond 
County, or in Kings, or in any portion of the State. 

So far as I discover, by a hasty reference to our statutes, the 
first law of the State on the subject of Quarantine was the 
" Act to prevent the bringing in and spreading of infectious 
distempers in this State," passed 4th May, 1784, at the seventh 
session of the Legislature. (1 Greenleaf 's Laws of New York, 
117.) By this act, Quarantine was to be performed at Bedlow's 
Island, or in such other place, and for such time, and in such 
manner, as the Governor, (to whom by the act of March 29, 
1784, [idem, p. 69,] the island, called Governor's or Nutten 
Island, was assigned,) or in his absence from the city of New 
York, as the Mayor thereof should direct and appoint. This 
act contains the germ of our present Quarantine system ; and 
the provision in section 3 for the appointment by the Governor 
and Council of a physician to inspect all vessels which may 
have on board, or which may be suspected of having on board, 
any person or persons infected with a contagious distemper, is 
probably the earliest provision of law in the State for the selec- 
tion of a person to perform the duties of the present Health 
Officer of the port of New York. 

This act was amended on the 27th March, 1794, (3 Green- 
leaf, 146,) and by section 5 of the amendatory act the Governor 
was authorized to appropriate Governor's Island for the pur- 
pose of erecting buildings, &c, for the reception or accommo- 
dation of any persons infected with any such distemper. On 
the 1st April, 1796, another act was passed, (3 Greenleaf, 305,) 
the first provision of which is " that a person practicing physic 



8 

shall be appointed Health Officer for the city of New York." 
And extended powers are conferred upon him ; most of which 
he possesses to this day. By the fourth section the Governor 
was authorized to " cause a building suitable to serve for a 
lazaretto, the expense whereof, exclusive of the moneys to be 
expended for the purchase of lands, if any shall be purchased, 
not to exceed the sum of two thousand pounds, to be erected 
on Nutten Island, or on other lands which may be deemed 
more eligible, and which other lands he is hereby authorized 
to purchase for the people of this State for the reception of 
persons," &c, subject to quarantine. The act of February 10, 
1797, (3 Greenleaf, 867,) extended the powers of the Health 
Officer to coasting vessels coming from any place south of Cape 
May, if he should " deem it expedient." 

By the act of March 30, 1801, (1 Webster's Laws of New York, 
361,) it was enacted "that there shall continue to be a health 
office in the city of New York, under the superintendence of 
three Commissioners, who shall consist of a Health Officer, and 
of a physician, to be styled the Resident Physician, and one 
other person ; that the Health Officer shall reside at Staten 
Island, the Resident Physician in the city of New York, and 
the other Commissioner at or near the Marine Hospital on 
Staten Island, or in the city of New York, as a majority of said 
Commissioners may deem most proper." 

This act fully established a quarantine system substantially 
like that of che present day. Many of its provisions continue 
through all subsequent revisions almost unchanged till now. 
The 20th section (Id., p. 368,) declares "that the Hospital 
erected on the easterly part of Staten Island shall continue to 
be denominated the Marine Hospital, and shall, together with 
the other buildings and improvements made or to be made 
thereon, at the discretion of the said Commissioners, and the 
land adjoining the same, and belonging to the people of this 
State, be holden by the Commissioners of the said Health Office 
in trust for the use of the people of this State, and the purposes 
specified in this act; and all vessels subject to quarantine shall 
come to anchor as near as may be to the said Hospital, which 
is hereby declared to be the anchoring place for vessels at 
Quarantine ; that the said Health Officer shall be Physician of 



the said Hospital, and the said Commissioners of the Health 
Office shall in other respects have the superintendence thereof, 
and employ mates, nurses and attendants, and provide bedding, 
clothing, fuel, provisions, medicine, and such other matters as 
shall be requisite therein ; and it shall be lawful for them to 
make reasonable rules and orders for the government and man- 
agement of the said Hospital." 

The provisions in section 22 of this Act, in regard to persons 
eloping from Quarantine, their apprehension and delivery to 
the Health Officer, to be detained at Quarantine till regularly 
discharged by him, closely resemble some of the provisions of 
section 14 of chapter 147 of the Laws of 1856. 

By this Act, (that of 1801,) the Quarantine establishment was 
reduced to regular system, and endowed with vigorous and 
efficient powers. It had then been already located where it 
now is, and the Hospital had been erected ; doubtless under the 
authority conferred on the Governor by section 4 of the Act of 
April 1, 1796. It has ever since continued in that location, and 
ha9 been the object of the constant attention and care of the 
Legislature. The numerous laws that have since been passed, 
and the generous grants that have at times been made for its 
support, evince an unvarying design, on the part of the State, 
to omit nothing essential to the completeness and efficiency of 
the establishment. And if the intention of the Legislature may 
be inferred from their silence, as well as from their enactments, 
this Quarantine establishment was deemed amply sufficient to 
guard the health of the whole State. For, until a very recent 
period, it was, if I mistake not, with the exception of the Boards 
of Health of New York, Albany, and a few similar places, the 
only regularly constituted sanitary authority, and the only per- 
manent sanitary establishment in the State. 

The provisions of sections 34 and 35 of this Act, (1 Webster, 
374,) which are the same as those of section 33 of chapter 175 
of the Laws of 1811, which latter was revised and re-enacted on 
the 26th of March, 1813, (see 2 R L., 536,) seem to contain the 
only warrant for the exercise, by the officers of the towns, of 
any of the powers of a Board of Health. The same provisions 
are contained in sections 40 and 41 of the " Act to provide 
against infectious and pestilential diseases," passed April 14, 



10 

1820, by section 45 of -which the former Act seems to have been 
repealed. (See Laws of 1820, pp. 222-3.) 

That Act was repealed, and another with the same title en- 
acted in its stead, on the 21st of March, 1823. (Laws of 1823, 
p. 54, p. 82, section 51.) Sections 44 and 45 of this latter Act 
are evidently a revision of and a substitute for sections 40 and 
41 of the Act of April 14, 1820. But in the revision all the 
powers of the town officers are taken away, and the health 
laws are confined to Quarantine and the cities of New York, 
Albany and Hudson, and the town of Brooklyn. 

The Act of March 21, 1823, was repealed by the General 
Repealing Act, passed on the adoption of the Revised Statutes. 
(See 3 R. S., 140," pi. 383.) 

The fourteenth chapter of the first part of the Revised Stat- 
utes, as proposed by the revisers, contained no provision similar 
to those referred to in sections 34 and 35 of the Act of March 
30, 1801, and of some subsequent laws. (See Revisers' Re- 
ports, vol. 2d, chap. 14, p. 42.) In the enactment of this chap- 
ter, the Legislature inserted section 22 of title 7. (See 1 R. S., 
451 ;* 3d R. S., 2d ed., p. 504.) This section provides that 
" any two Justices of the Peace, in any town in this State, may 
cause all persons who shall be sick of any infectious or pestilen- 
tial disease, and not oeing residents of such town, by an order 
in writing, to he removed to such place of safety within the town 
as they shall deem necessary for the preservation of the public 
health." 

Such had been the general course of the legislation of the 
State, and such the comparative care and attention bestowed 
by the Legislature on the Quarantine establishment, on the one 
hand, and the subject of sanitary powers and regulations, in the 
towns of the State, on the other, up to the passage of the " Act 
for the Preservation of the Public Health," on the 10th day of 
April, 1850. (See Laws 1850, chap. 324, p. 690.) But on the 
same day an elaborate " Act relating to the public health in 
the city of New York," was passed, (see chap. 275 of Laws 
1850, p. 597,) which seems (section 38, p. 615) to be a careful 
revision of all statutory provisions on the subject of the Act up 
to that time. 

It is, in my judgment, clearly my duty to construe these two 



11 

laws, or such as may be substituted for one or the other of them, 
together ; so that both may stand, if it be possible. If that 
cannot be done, if they are irreconcilably in conflict, then it 
seems to me that the institution of the State, founded almost 
with the State itself, the object of its bounty and its constant 
legislative attention, presided over by officers carefully selected 
by the highest executive authorities of the State, and who are 
vested with large powers and set apart for the performance of 
highly important and delicate duties, permanent, comparatively 
speaking, in the tenure of their offices, presiding over the health 
of great cities which are exposed to infections by a widely ex- 
tended commerce with all the ports of the world ; that institu- 
tion is to be preserved, to be kept in full vigor and efficiency ; 
it is not to be sacrificed to the local, limited Board of Health of 
a town or village, whose members may change from year to 
year, meeting only when " in the opinion of a majority of such 
Board the public good requires it," and composed in many, if 
not in almost every case, of men not physicians, or familiar with 
disease. 

It was expressly conceded on the argument, and had it not 
been, I am bound judicially to notice, that that place in the 
town of Castleton mentioned in the regulation of its Board of 
Health, and there stated to be " commonly known as the 
Quarantine inclosure," is the quarantine establishment of the 
State, and that it includes the Marine Hospital mentioned in 
section 1, of title 2, of chap. 275 of the Laws of -1850, and in 
section 1 of chap. 117 of the Laws of 1856. 

It is not to be denied, that very broad and extensive powers 
are conferred upon the Boards of Health of the several towns 
of the State, by section 3 of the " Act for the Preservation of 
the Public Health." Sub. 1 of this section, as above stated, 
gives such Boards power " to regulate and prohibit or prevent 
all communication or intercourse by and with all houses, tene- 
ments and places, and the persons occupying the same, in which 
there shall be -any persons who shall have been exposed to any 
infectious or contagious disease." 

It was claimed on the argument that this authority was broad 
enough to warrant the framing of the regulation now under 
examination. And so, indeed, it does in terms appear to be. 



12 

It must be remarked, however, that a comparison of the two 
acts will not show any necessary conflict between them. Their 
provisions harmonize. As they were passed together, so it 
seems to me they can stand together, if the officers appointed 
to carry them into effect act in the proper spirit. But when a 
comparison is instituted between this regulation of the Board 
of Health of Castleton and the statutes establishing and regu- 
lating the Hospital and Quarantine establishment, they are 
found to be in irreconcilable conflict. The regulation must 
therefore be void. 

This Board of Health, like the directors of a corporation in 
framing its by-laws, was bound to frame them so as to accord 
with, not to violate, the provisions of the law. The Legislature 
had a right to presume that the Board, in making their regula- 
tions under this section, would act in obedience to other statutes, 
instead of attempting to suspend or repeal them. The legal 
obligation so to do is as apparent as if a proviso had been added 
to the section expressly declaring that the ordinances of the 
Board were to be such only as should not conflict with the con- 
stitution or laws of the State. It could never have been the 
intention of the Legislature to put into the hands of any Board, 
or tribunal in the State, the power to suspend, or repeal, or 
override a statute ; and that especially when the repeal would 
be merely local and temporary, like the sessions of the Board 
of Town Officers in a sickly season. 

It was, however, insisted by the counsel for the people, that 
this regulation, which " prohibits all persons from passing from 
within the Quarantine inclosure into any other part of the town 
of Castleton," was not invalid or void, because the inmates of 
Quarantine might, by shipping, or boats from its water front, 
pass entirely round the town of Castleton, and land in other 
towns or counties. It is at least very doubtful, upon a com- 
parison of the sweeping terms of this regulation with the boun- 
daries of the county of Richmond and town of Castleton, as 
fixed by law, (see 3 11. S., 3d ed., p. 2, pi. 4, and p. 20, § 4, 
pi. 1,) whether even that mode of exit from Quarantine is not 
a misdemeanor, punishable by fine and imprisonment, if this 
regulation is valid. For the county and town are bounded 
northwardly and eastwardly " by the middle of the main chan- 



13 

nel of the bay and harbor of New York." And it will be dif- 
ficult to establish that the lands and waters covering them, 
between the shore and the middle of the channel, are "within 
the Quarantine inclosure." And on the landward side, the 
town of Castleton wholly incloses the Quarantine. Let it be 
admitted, then, as contended, that this argument is a verbal 
subtlety, and let us assume that egress from Quarantine by 
water is not prohibited by this regulation of the Board of 
Health. Yet, if this Board can do what they claim the right 
to do on the landward side of Quarantine, may they not also 
on the seaward side ? And if not, what this town does upon 
one of the boundaries of Quarantine, may be done along the 
boundaries of every town in the State, if, in the opinion of the 
majority of the Board of Health of the town, " the public good 
requires it." What is, then, the state of things in Quarantine ? 

At some seasons, we know that emigrants arrive there in 
great numbers, and the hospitals are filled. A panic is of easy 
growth. The inhabitants of the adjoining towns become alarm- 
ed ; it may be, with some just grounds of apprehension ; per- 
haps without such grounds. If three out of the five men com- 
posing the Town Boards of Health shall be of the opinion that 
" the public good requires it," (rather an indefinite rule of 
action,) they may pass an ordinance like the one in question, 
and absolutely prohibit the coming among them of any person 
from Quarantine. How, then, are the Health Officer and the 
Physician of the Hospital to provide nurses, servants, attend- 
ants ; to obtain food, clothing, medicines ? How are the pilots 
of the port to perform their duties ? They are by law (sections 
8, 9, 10 of chap. 147 of Laws of 1856) to bring every vessel 
they find to be infected into the anchorage at Quarantine, and to 
report all the violations of that law, as soon as may be, to the 
Health Officer. Can they, by merely stepping on the deck of 
a vessel outside Sandy Hook, and going ashore from it at Qua- 
rantine, to report to the Health Officer, be prevented by a re- 
gulation like this from pursuing their calling ? For that is, or 
may perfectly well be, the effect of such a prohibition. And 
what, then, becomes of the commerce of the port ? 

By section 15 of the same act, the Commissioners of Emigra- 
tion are required to " remove from the Marine Hospital and 



14 

take charge of all indigent emigrants whose quarantine has 
expired, and who shall have sufficiently recovered from the 
diseases with which they were admitted, on the notification, in 
writing, of the Health Officer that such removal will not, with 
ordinary care, endanger the safety of the individual or the 
health of the community." Suppose such a notice to be given 
by the Health Officer to the Commissioners of Emigration. 
One of them goes into the Quarantine inclosure, with proper 
assistants and means of conveyance, to remove such emigrants. 
But on offering to leave quarantine, the way is absolutely closed 
by this ordinance of the town of Castleton. He turns to the 
next adjacent town on the Island, or to the contiguous town in 
Kings County, and finds, or he may find, if this ordinance is 
valid, a similar barricade blocking his way there. But the 
statute requires that he "shall remove" the emigrants and take 
charge of them. Whom shall he obey ? The officers of these 
towns or the statutes of the State ? 

But this is not yet a full statement of the case. The Health 
Officer himself, as well as the Physician of the Hospital, and 
all their deputies, assistants, nurses and orderlies, are clearly 
within the terms of the regulation, and are absolutely pro- 
hibited from passing out of the Quarantine inclosure. The 
Health Officer is, by section 4 of chapter 275 of the Laws of 
1850, made one of the Commissioners of Health of New York 
city. By other provisions of the statute, he is required to at- 
tend the meetings of the Commissioners, at the City Hall, in 
New York, daily ; while he is also required by law " to reside 
within the Quarantine inclosure." How is he to comply with 
these several requirements ? If he can be prevented from 
making use of the streets of Castleton, its docks and wharves, 
and the same ferry accommodations that other residents of that 
town avail themselves of, in passing to and from his duties in 
New York, is he not seriously crippled in the performance of 
functions of the most vital importance to the whole population 
of all these cities and towns ? He is, in my judgment, clearly 
entitled to enjoy every facility for the discharge of his onerous 
duties ; and this as well from the clear spirit of the law as from 
the express provisions of the statute, that ''it shall be the spe- 
cial duty of all magistrates and civil officers and of all citizens. 



15 

of the State to aid, to the utmost of their power, the Board of 
Health, and all the Health Officers mentioned in this act, in 
the performance of their respective duties." (Laws of 1850, 
p. 615, section 36.) But if this regulation is valid, a similar 
act of the Board of Health in New York may prohibit his land- 
ing on any wharf, or passing through any street in that city, 
and absolutely prevent the performance of his statutory duties. 

It was, however, contended on the argument that he had no 
right or power to perform any official act or discharge any 
duty, outside the Quarantine inclosure. There are many other 
provisions of law than those above referred to, which show that 
he may, if they do not clearly require that he shall, go abroad 
from the inclosure to perform his duties. (See chap. 147 Laws 
of 1856, sections 12 and 13, sub. 1,2, 3, 4, section 14, &c.) 
But were the position correct, it is at least a matter of grave 
doubt if that officer, whom the State has selected to ward off 
infection and disease from its whole people, can, by the Board 
of Health of a city or town, be declared to be so dangerous to 
the public health by reason of the mere performance of his 
statutory duties, that he may be absolutely prohibited from 
leaving the Quarantine inclosure. If he may, then the Board 
of Health in Northfield or Southfield might impose the like re- 
straint on the physician who has been appointed Health Officer 
of Castleton by its Board of Health, should it be found that he 
was attending a case of small-pox or infectious fever. 

But it was also contended, in argument, that this regulation 
might be void so far as the Health Officer was concerned, and 
yet be good as to the prisoner and others. 

Although I cannot admit the soundness of the position, nor 
allow that a prohibition to all persons means, and shall include, 
only certain classes of persons, and may therefore be valid ; 
still, it may be proper to treat it for a moment as sound, and to 
look at the regulation from another point of view. 

Suppose a person, no matter whether he be a destitute sea- 
man or emigrant, or the wisest, best and richest citizen in the 
State, has arrived at the anchorage ground in a vessel, and has 
been found sick with the yellow fever ; has been sent by the 
Health Officer to the Marine Hospital ; has been attended 
there by its physicians and nurses, and has been reported by 



16 

the Physician to the Health Officer " as sufficiently recovered 
from sickness to be discharged from the Hospital." (Laws of 
1856, page 239, sec. 35, sub. 3.) Suppose him, also, to have 
received from the Health Officer such a discharge as that 
officer is, by section 14 of the same act, authorized to grant. 
What are the rights of such a party? The State has subjected 
him to along confinement, it may be, to a very onerous one, at 
great loss in a pecuniary point of view, and to the deprivation 
of many comforts which he might have enjoyed at his own 
dwelling, outside the Quarantine inclosure. To have gone out, 
even to his own house, would have made him " guilty of a 
misdemeanor, punishable with or by fine and imprisonment." 
(Section 13 of same chapter.) But he has submitted to all the 
requirements of the State authorities, and has passed through 
the period of quarantine. Has not the State, by imposing these 
penalties, incurred reciprocal duties ? Shall it not in return 
assure to him the right of restoration to civil and social life ? 
Can it be that upon the outside of the wall there are another 
set of functionaries, who may subject him to another similar 
detention ? But let him submit to that in Castleton. Is he 
still safe? When he reaches lSIorlh.fi eld or Southfield, or 
crosses into New Utrecht, may not each of those towns in suc- 
cession " put him to his purgation ? " 

And where shall this state of things stop ? Clearly, if it may 
exist in Castleton, it may in every town between that and Cana- 
da. The result shows the entire absurdity of the attempt to 
assume such powers. It shows that the decision of the proper 
officers in Quarantine is final and conclusive. That at least 
there is not, and in the nature of things cannot be, any such 
board of appeal from those decisions as the town authorities of 
Castleton have sought to set up. 

I have said that this illustration shows the entire absurdity of 
the regulation in question. That, however, is not strictly true. 
For the regulation " prohibits all persons from coming from the 
Quarantine inclosure into any other part of the town." It does 
not allow to the outside Board of Health themselves, or to any 
other authority, either the right or the power to examine persons 
offering to leave Quarantine ; to decide that some are fully 



17 

cured and may, therefore, again mingle in life, while others 
are not yet fully freed from infection, and therefore require 
further care, and to be sent to the lazaretto of the town, that 
their cure may be completed. 

The Health Officer can send to the Hospital only those that 
are sick, and can retain in quarantine only for limited periods 
those who have been exposed to infection. But this regulation 
sentences all persons, well or sick, whether exposed to infection 
or not, to an unlimited imprisonment. That imprisonment, too, it 
may be added, is not such an one as under any quarantine law can 
be adjudged to be valid. For it is one where the restraining pow- 
er does not take, and cannot by possibility take, any measures 
whatever either to support the life or improve the health of the 
party confined, or to free him from infection ; that at some 
future period he may again enjoy the privileges of a member of 
society. 

Such a regulation is clearly not a compliance with the pro- 
visions of the statute constituting the town Boards of Health. 
With the power to prohibit is given, also, the power to regulate. 
The fourth subd. " authorizes them to regulate and prohibit or 
prevent all communication or intercourse," &c. In my judg- 
ment, they must exercise the powers of regulating and of pro- 
hibiting together. They can exclude from their limits not " all 
persons," but such only as, on a proper examination, may be 
found dangerous to the health of the town. Certainly no per- 
son can look through the numerous statutes which the Legisla- 
ture have so carefully framed for the regulation of their officers 
at Quarantine, and can observe with what caution every provi- 
sion is made subservient to the comfort of patients and to their 
prompt restoration to sound health and to their duties in soci- 
ety, and be blind to the fact that this regulation, now sought to 
be enforced by fines and imprisonments, is at open war with 
the whole policy of the State from its foundation. It assumes 
powers and claims rights and privileges never yet arrogated by 
the supreme legislative body of the State— that fountain whence 
this Board derives not only its authorities, but its very existence. 
To sustain such assumptions is to create in every town in the 
commonwealth an irresponsible tribunal, whose only rule of ac- 
tion shall be, what in their opinion " the public good requires." 
3 



18 

The public health is doubtless an interest of great delicacy 
and importance. Whatever power is in fact necessary to pre- 
serve it, will be cheerfully conferred by the Legislature, and 
carried into full effect by the Courts. 

But it can never be permitted that, even for the sake of the 
public health, any local, inferior board or tribunal shall repeal 
statutes, suspend the operation of the Constitution, and infringe 
all the natural rights of the citizen. 

I feel no hesitation in declaring this regulation void. Dis- 
obedience to it constitutes no crime. The prisoner is discharged.